Following David Hart’s highly popular review of Alan Paterson’s book on the Supreme Court, here’s an account of the recent public speeches of Lord Sumption, Lord Justice Laws, and Lady Hale. I apologise in advance for the length of this post, but to do justice to all three lectures it has proved necessary to quote extensively from each. There are links to the full text of the lectures, if you want to digest them over Christmas. But whether or not that prospect appeals, here is a challenge for the festive season. Lord Sumption divides judges into three categories: the “parson”, the “pragmatic realist” and the”analyst” (quoted by Professor Paterson in Final Judgment: The Last Law Lords and the Supreme Court). Which of these labels fit the respective speakers?
Laws begins with a genuflection to the common law, “the crucible”, he calls it, “of the moderate and orderly development of State power”. This “benign continuum” of developing law has been the means by which legislature and government are “allowed efficacy but forbidden oppression”. The thrust of his talk is about the actual or perceived threat from law made in Europe upon the two chief virtues of the common law: “its catholicity, and its restraint.”
The common law’s catholicity, drawing as it does inspiration from so many sources – Laws gives as an example the doctrine of legitimate expectation, drawn from German administrative law – may be its best defence against the incoming tide of foreign-made law. For this particular adaptability has nothing to do with the “politics of Europe.” Such principles as legitimate expectation and proportionality would continue to mature within the fabric of the common law, even if the United Kingdom were to secede from the Union.
Whereas the threat to the catholicity of the common law raised by EU law is only perceived, there is a more serious and present danger presented by the law of human rights. That is to what Laws calls the “restraint” of the common law, in which departure from precedent is rare and closely principled when it happens. The invitation by Lord Bingham in Ullah to the courts to “keep pace with the Strasbourg jurisprudence” has, in Laws’ view, come to represent a “wrong turning” (it is worth noting here that that ruling is nearly ten years old and a great deal of water has passed under the human rights bridge since it was handed down). Section 2(1) of the HRA only enjoins us to “take account” of Strasbourg law, not to be subservient to it. Tempted though the courts are to treat Strasbourg rulings as the authoritative expositions of the Convention, the words in Section 2(1) cannot bear the weight of this meaning.
The expression “take into account” simply does not mean “follow” or “treat as binding” (or something close to it)…
[Of course] the United Kingdom must fulfil rulings of the Strasbourg court in cases brought against it. But this is an obligation which sounds in public international law; it forms no part whatever of our domestic law.
In the mudslinging over the right to family life versus the public interest in the deportation of foreign criminals we forget that the debate is not only about the weight to be accorded to Article 8. It is about something far more important: the respective roles of government and judiciary.
In this jurisdiction, despite the brickbats daily thrown at politicians, there remains a deep sense that matters of State policy are in essence the responsibility of the elected arms of government
By falling for the Strasbourg Court’s expansionist tendencies (otherwise known as its “living instrument” approach), we neglect the truth that “human rights are like the human heart: the bigger they get, the weaker they get.”
All law – not just human rights – is riding an expansionist wave. As technology and globalisation outstrips man’s cooperative instincts, both statute and judge made law has stepped into the breach to “eliminate risk in all of the infinite variety of human activities” -
New criminal offences appear like mushrooms after every rainstorm. … Turning from statute to common law, a wide range of acts which a century ago would have been regarded as casual misfortunes or as governed only by principles of courtesy, are now actionable torts.
As religion and social convention retreat, at any rate in the west, people turn to the law for moral and spiritual guidance. This isn’t necessarily a good thing, because questions do not present themselves in easily identifiable boxes – political, for parliament, legal, for the judges. They arrive in inchoate form, and are shoehorned according to the individual judge’s own prejudices, no matter how loftily framed. So there are a number of conclusions that could have been reached about the imposition of court fees on everyone, regardless of wealth (the question that arose in R v Lord Chancellor ex parte Witham  QB 575):
1. It is not for judges to say whether it is more important that the poor should have affordable access to the courts or that they should have affordable access to hospitals, schools, or any of the other publicly provided services of the state. This is precisely the kind of policy decision which is for parliament, not the courts.
2. Affordable access to justice is so fundamental a right that the state is under an absolute legal duty to provide it. From this it follows that access to justice trumps all other calls on the state’s budget. Put like that, the question ceases to be a political issue and becomes a legal one.
3. A third approach is to recognise the absolute character of the duty to provide affordable access to the courts to the poor, while doing it in some other way, like making legal aid available on a more generous basis.
In a sense, approaches 2 and 3 are similar in that they both involve judges making resource allocation decisions in favour of their own bailiwick, litigation. And as Sumption points out, the real question was not about the importance of keeping down court fees, but about the relative importance of doing so, relative, that is, to other possible uses of the money or other possible ways of helping the poor. Is litigation, he asks, such a valuable part of our social culture that we should privilege it in this way?
If Mr. Witham’s income support payments had been increased by enough to pay the court fee, he might have preferred to spend the money on a holiday than on suing his detractor
This reflection brings us (inexorably) to “much the most notable monument” of this tendency to convert political questions into legal ones: the European Convention of Human Rights. And of course, with its “living instrument” approach, the Strasbourg Court has expanded the Convention to include many new rights that are simply not to be found in the language of the treaty. Article 8, in the hands of the Strasbourg Court,
has been extended to cover the legal status of illegitimate children, immigration and deportation, extradition, aspects of criminal sentencing, abortion, homosexuality, assisted suicide, child abduction, the law of landlord and tenant, and a great deal else besides.
None of these extensions, Sumption continues, are warranted by the express language of the Convention, nor in most cases are they necessary implications. They are commonly extensions of the text which rest on the sole authority of the judges of the court. The extension of the franchise to prisoners, for example, is a purely political matter stated by the Strasbourg Court to be a question of law. The “resultant collision between an irresistible force and an immoveable object” has catalysed the current debate about Strasbourg’s influence over UK lawmaking, a debate that has become polarised between human rights defenders, who regard opponents of Strasbourg as ignorant and anti-Europe, and those opponents, who feel that they are losing their voice in what is supposed to be a democracy.
The disdain felt by what Sumption calls “intelligent commentators” (not only soi disant defenders of rights-based law) for the truly democratic process diverts attention away from some of the fundamental features of the political process. By insisting that public law involves a confrontation between the state and the individual, human rights are given an artificially privileged place in the determination of the balance to be struck between private and public interests. Most of these “public law” questions are in reality issues between different groups of citizens, particularly in relation to major social or moral issues on which people hold strongly divergent positions. Politics may be inadequate and even sometimes despicable, but its essential function is to reconcile these inconsistent interests and opinions, “by producing a result which it may be that few people would have chosen as their preferred option, but which the majority can live with”:
It is true that the political process is often characterised by opacity, fudge, or irrationality, and who is going to defend those? Well, at the risk of sounding paradoxical, I am going to defend them. They are tools of compromise, enabling divergent views and interests to be accommodated. The result may be intellectually impure, but it is frequently in the public interest. Unfortunately, few people recognise this.
The patrician model of intellectual and moral decision making embodied by the courts appears to be more attractive than the “messy compromises” required to build a political consensus in a Parliamentary system. But there is, Sumption warns, a price to be paid for this preference.
The judicial resolution of major policy issues undermines our ability to live together in harmony by depriving us of a method of mediating compromises among ourselves. Politics is a method of mediating compromises in which we can all participate, albeit indirectly, and which we are therefore more likely to recognise as legitimate.
The trajectory of Lady Hale’s peroration may be discerned from her title. Human rights do have a point, and she sets out to explain why, in a journey that traverses the landscape of British legal history since the Magna Carta was signed in 1215, which erected the two pillars of the rule of law: the right to due process and the right to liberty. When nearly eight centuries later the UK recognised the right of individuals to petition Strasbourg, the British drafters of the original Convention were soon “confounded” by the creative tendencies of that court – this was the invention of the “living instrument”, or what Lady Hale prefers to call its “evolutive” approach.
It is important, in Hale’s view, that certain rights have to be implied in to the Convention if the express rights are to have any meaning.
Thus it was that in Marckz v Belgium the court was able to spell out of the right to respect for family life in article 8 a duty to recognize the family relationships of children born outside marriage on equal terms with those of children born within it.
Marckx, incidentally, is misspelt in the transcript and will not turn up any results in a search on Hudoc.
We will return to Marckx later. Hale then goes on to deal with the passing of the Human Rights Act, and the “ingenious solution” reached by the architects of the statute to the problem of combining enforceable convention rights with the sovereignty of the UK parliament (the “reading down” requirement and the procedure for declarations of incompatibility). The horizontal application of the Act was made possible by requiring courts to interpret common and statute law compatibly with the Convention even though the parties before them are only private bodies or individuals, not otherwise touched by Convention responsibilities.
She prefers not to take sides on controversial cases like Quila, where the courts intervened to frustrate the government’s policy to prevent forced marriages as a way of gaining entry into the UK, and in general her speech steers away from the democratic deficit problem highlighted by Sumption. Instead, she focusses on the relationship between the UK appellate courts and Strasbourg, sometimes competing, it seems, in the race to finesse their protection of rights. An example of the UK courts going “further” than Strasbourg is to be found in Rabone, where she and her fellow judges in the Supreme Court held that there was a positive obligation to protect the life of a mentally ill young woman who had been admitted to hospital informally because of serious attempts to take her own life.
The enthusiasm of judges for “reading down” statutory provisions to render them compatible with the Convention has been mirrored, avers Hale, by the apparent reluctance of respondent ministers to accept the declaration of incompatibility route. By the end of last year, there had only been 28 such declarations in all the human rights cases brought before the courts since the passing of the Human Rights Act.
As for the future, Hale predicts that the present polarisation about human rights may well lead to a radical overhaul of the present system, but she believes that whatever replaces the HRA should “give no less protection than the current Act, and maybe even more”.
Now, Marckx v Belgium (1979), one of the first cases where the Strasbourg Court sought to impose positive obligations out of the Convention’s generally negatively worded rights (non-interference with individual’s interests). Sir Gerald Fitzmaurice, says Lady Hale, appeared “almost apoplectic” in his dissent against his fellow judges’ majority ruling.
Apoplectic? Let’s have a look at what Sir Gerald had to say. He warns against the tendency to lose sight of principle when “eagerness for specific results – however meritorious they may be in themselves – overreaches the still, small voice of the juridical conscience.” What the Court had lost sight of was the question of applicability – in this case, whether Article 8 was applicable at all to the facts in the frame. Since Article 8 has been so explosively contentious for so long, it is worth quoting in full what Fitzmaurice had to say about it:
the main, if not indeed the sole object and intended sphere of application of Article 8 , was that of what I will call the “domiciliary protection” of the individual. He and his family were no longer to be subjected to the four o’clock in the morning rat-a-tat on the door; to domestic intrusions, searches and questionings;… in short the whole gamut of fascist and communist inquisitorial practices such as had scarcely been known, at least in Western Europe, since the eras of religious intolerance and oppression
This was the evil against which Article 8 was framed. It had nothing to do with the internal, domestic regulation of family relationships, nor “the regulation of the civil status of babies”. The basic category involved is one of civil status; and matters of civil status are not dealt with by Article 8: they do not come within its scope. The paragraphs in the main judgment that purport to include civil status were in Sir Gerald’s view little else but a misguided endeavour to read – or rather introduce – a whole code of family law into Article 8 of the Convention,
thus inflating it in a manner, and to an extent, wholly incommensurable with its true and intended proportions. …The pretension to do so, in order to force the case within the (actually) quite narrow limits of Article 8 is, as the French saying aptly puts it, “cousu de fil blanc” (“sticking out a mile”)
The finding of the Court that Article 1 Protocol 1 protected individual’s rights to make testamentary dispositions comes in for similar criticism. Even if he had agreed with the majority, that the civil status of illegitimate children attracted the protection of the Convention, he still felt “strongly” that the Belgian Government ought not to be condemned for the operation of a law which had in fact much that can be urged in favour of it, and in any event lay well within the margin of appreciation or discretion that any Government, acting bona fide, ought to be accorded. The route by which Belgium should change its laws in such matters should, in his view, be achieved by the democratic process of legislation, not litigation.
No Government or authority can be expected to operate from within a strait-jacket of this sort and without the benefit of a faculty of discretion functioning within defensible limits. Equally, breaches of the Convention should be held to exist only when they are clear and not when they can only be established by complex and recondite arguments, at best highly controversial, – as much liable to be wrong as right.
These are stern words, but hardly symptomatic of “apoplexy”. It was in landmark cases like Marckx, says Hale, that we discovered that UK law “did not always conform to the rights which had been spelled out in the convention”. But the whole point about Marckx and the other “living instrument” cases is that they turn on rights that are not referred to even in the most elliptical fashion, by the Convention.
No doubt there was considerable “judicial excitement” felt by those, including Lady Hale, “sitting on the woolsack at the state opening of Parliament” when they heard the queen announce legislation that was going to usher the Convention in to UK law. But excitement does not make for legitimacy. Indeed it forms the very basis for the sort of disdain of true democracy singled out by Sumption in his account of the march of human rights. Lady Hale and other judges, as well as weighty sections of the academic and legal professions, may well feel that they should “develop the convention rights in the ways which we think right, whether or not Strasbourg would do the same”. But where is their political or legal mandate for so doing? Not in international law – Article 42 of the Convention only enjoins signatory states to secure the rights listed in the instrument itself to citizens within their borders, not ones that have been dreamed up to be bigger and better. Hale says that the Strasbourg Court has “no objection” to judicial creativity at a domestic level – such as when the House of Lords held the reduction of benefits for asylum seekers to be treatment contrary to the prohibition of torture and degrading treatment under Article 3 (Limbuela ). Of course it doesn’t. Such generosity with state resources precisely mirrors and endorses the Court’s own expansionism. But it’s not Strasbourg’s approval that is in issue in the current ugly standoff over human rights and their impact upon public law.
Lady Hale identifies three main sources of opposition to the HRA and human rights generally: the press, the Home Secretary and the Justice Secretary. In her view it comes as no surprise that the media should be implacably opposed to an enforceable right to privacy; as for the ministers, their hostility to judicial tanks on their respective lawns is to be expected. But again, with respect, Lady Hale is tilting at the wrong windmill. The opposition that is being expressed by the press and some government ministers is only a reflection of the views of the very public that the Human Rights Act promised to protect.
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